Common use of CONSOLIDATION, MERGER AND SALE Clause in Contracts

CONSOLIDATION, MERGER AND SALE. The Borrower shall not (a) consolidate with or merge into any other Person or convey, transfer or lease the properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower is the surviving entity, or (B) the Person formed by or surviving such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactions, no Default or Event of Default exists; and (iv) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organization; provided that the successor assumes all of the Borrower’s obligations under this Agreement and the other Loan Documents. Upon any merger or consolidation, or any sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, in the case of such a sale, assignment, transfer, conveyance or other disposition of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and the other Loan Documents without further action.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not Section 11.01. Company May Consolidate, Etc. on Certain Terms. (a) The Company shall not consolidate with or merge with or into any other Person or conveyotherwise combine with another Person, or sell, lease or otherwise transfer or lease dispose of all or substantially all of the properties and consolidated assets of the Borrower Company and its Subsidiaries (considered Subsidiaries, taken as a single enterprise) substantially as an entirety whole, to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entiretyanother Person, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower Company is the surviving entitycorporation or the resulting, surviving or (B) the transferee Person formed by or surviving such consolidation or merger (if other than not the BorrowerCompany) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and such corporation (if not the Company) expressly assumes by supplemental indenture all of the Company’s obligations under the Notes and this Indenture; (iiiii) immediately after giving effect to such transactionstransaction, no Default or Event of Default existsshall have occurred and be continuing under this Indenture; and (iviii) each Guarantor (unless it is the Borrower has delivered other party to the Administrative Agent an Officer’s Certificate and an Opinion transaction, in which case the provisions in Section 11.02 shall apply) confirms by supplemental indenture that its Guarantee applies to the obligations of Counselsuch resulting, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding surviving or transferee Person (if not the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organization; provided that the successor assumes all of the Borrower’s obligations Company) under this Agreement Indenture and the other Loan DocumentsNotes. Upon any merger or consolidationFor purposes of this Section 11.01, or any sale, assignment, transfer, conveyance lease or other transfer or disposition of the assets of one or more Subsidiaries of the Company to another Person that would, if such assets were held directly by the Company instead of such Subsidiaries, have constituted the sale, lease or other transfer or disposition of all or substantially all of the properties or consolidated assets of the Borrower Company and its Subsidiaries Subsidiaries, taken as a whole, in each caseshall be deemed to be the sale, in accordance with lease or other transfer or disposition of the provisions assets of this Agreement described in all or substantially all of the first paragraph consolidated assets of this Section 7.3the Company and its Subsidiaries, taken as a whole, to another Person. (b) Upon any such consolidation, merger, combination or sale, lease or other transfer or disposition and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery and/or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if any, will not the Company) shall succeed to and be substituted for the Borrowerto, and may exercise every right and power of and be substituted for, the Borrower under this Agreement and the other Loan DocumentsCompany, with the same effect as if the Successor Company it had been named herein as the Borrower in party of the first part, and the Company shall be discharged from its obligations under the Notes and this AgreementIndenture, and, except in the case of a lease. Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such a Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by an Officer of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, assignmenttransfer or disposition (but not in the case of a lease), transfer, conveyance or other disposition of properties or assetsupon compliance with this Article 11, the Borrower Person named as the “Company” in the first paragraph of this Indenture shall be released from its liabilities as obligor and relieved maker of the Notes and from any its obligations under this Agreement Indenture and the other Loan Documents without further actionNotes.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not (a) consolidate with or merge into any other Person or convey, transfer or lease the properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower is the surviving entity, or (B) the Person formed by or surviving such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the lxxxi Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactions, no Default or Event of Default exists; and (iv) the Borrower has delivered to the Administrative Agent an Officer’s 's Certificate and an Opinion of Counsel, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the Borrower’s 's jurisdiction of organization or the Borrower’s 's form of organization; provided that the successor assumes all of the Borrower’s 's obligations under this Agreement and the other Loan Documents. Upon any merger or consolidation, or any sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, in the case of such a sale, assignment, transfer, conveyance or other disposition of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and the other Loan Documents without further action.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not Without the consent of the Majority Shareholders, neither the Company nor any Subsidiary will do any of the following (or agree to do any of the following) pursuant to a transaction approved by the Board of Directors of the Company: (a) wind up, liquidate or dissolve its affairs; (b) sell, lease, transfer or otherwise dispose of all or substantially all of its assets to any other Person; (c) consolidate with or with, merge into or enter into a share exchange with any other Person; or (d) permit any other Person or convey, transfer or lease the properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower is the surviving entity, or (B) the Person formed by or surviving such consolidation or merger (if other than a wholly- owned Subsidiary on the Borrowerdate hereof) to merge into or the Person to which such sale, assignment, transfer, conveyancesell, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactions, no Default or Event of Default exists; and (iv) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant property, assets or liabilities and was formed solely for capital stock to the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organization; provided that the successor assumes all of the Borrower’s obligations under this Agreement and the other Loan Documents. Upon any merger or consolidation, Company or any saleSubsidiary, assignmentunless: (i) in the case of actions under clause (a) or (b) above, transfera wholly- owned Subsidiary is wound-up, conveyance dissolved and liquidated into another wholly- owned Subsidiary or other disposition into the Company or a wholly-owned Subsidiary sells, leases, transfers or otherwise disposes of all or substantially all of its assets to another wholly-owned Subsidiary or to the properties or assets of the Borrower and its Subsidiaries taken as a whole, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, ; or (ii) in the case of actions under clause (c) or (d) above, each of the following conditions is satisfied: (A) if such action involves the Company and if such surviving Person is a salecorporation other than the Company, assignmentall liabilities and obligations of the Company under the Stock Purchase Agreements shall remain in effect and shall have been expressly assumed by such surviving Person (pursuant to a document in form and substance reasonably satisfactory to the Majority Shareholders and their counsel) as if such surviving Person were the "Company" hereunder and thereunder; and (B) either (x) the Common Stock of such transferee Person into which the Series B Preferred Stock will thereafter be convertible (or American Depositary Receipts with respect thereto) is listed on a national securities exchange in the United States or traded on The Nasdaq Stock Market, transfer, conveyance or other disposition (y) all of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and Series B Preferred Stock is concurrently redeemed for cash in accordance with Section 5 of the other Loan Documents without further actionSeries B Certificate of Designations.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not (a) consolidate with or merge into any other Person or convey, transfer or lease the properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower is the surviving entity, or (B) the Person formed by or surviving such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactions, no Default or Event of Default exists; and (iv) the Borrower has delivered to the Administrative Agent an OfficerOfficer’sOfficer’s Certificate and an Opinion of Counsel, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the BorrowerBorrower’sBorrower’s jurisdiction of organization or the BorrowerBorrower’sBorrower’s form of organization; provided that the successor assumes all of the BorrowerBorrower’sBorrower’s obligations under this Agreement and the other Loan Documents. Upon any merger or consolidation, or any sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.37.37.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, in the case of such a sale, assignment, transfer, conveyance or other disposition of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and the other Loan Documents without further action.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not SECTION 11.01. Company may consolidate, etc., on certain ------------------------------------------ terms. ----- (a) consolidate Nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of the Company with or merge into any other Person corporation or conveycorporations (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, transfer or lease shall prevent any sale or conveyance of all or substantially all the properties and assets property of the Borrower and its Subsidiaries Company to any other corporation (considered as whether or not affiliated with the Company) whether in a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in related transactions; provided, however, and the disposition of Company hereby covenants and agrees, that any such consolidation, merger, sale or conveyance shall be upon the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: condition that (i) either immediately after giving effect to such consolidation, merger, sale or conveyance, the corporation (Awhether the Company or such other corporation) in the case of a formed by or surviving any such consolidation or merger, or to which such sale or conveyance shall have been made, whether the Borrower is Company or such other corporation (the "surviving corporation"), shall not be in default in the performance or observance of any of the terms, covenants and conditions of this Indenture to be kept or performed by the Company, (ii) the surviving entity, or (B) the Person formed by or surviving such consolidation or merger corporation (if other than the BorrowerCompany) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to shall be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity a corporation organized and existing under the laws of the The United StatesStates of America or any State thereof, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactionsconsolidation, no Default merger, sale or Event conveyance, the surviving corporation (whether the Company or such other corporation) could incur $1.00 of Default existsIndebtedness pursuant to Section 4.10(a), (iv) the surviving corporation (if other than the Company) shall expressly assume the due and punctual payment of the principal of, premium, if any, Change of Control Purchase Price, Asset Sale Purchase Price and interest on all of the Notes, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed or observed by the Company, by supplemental indenture complying with the requirements of Article Ten, satisfactory in form to the Trustee, executed and delivered to the Trustee by such corporation and (v) immediately after giving effect to such consolidation, merger, sale or conveyance, the surviving corporation (whether the Company or such other corporation) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction. If at any time there be any consolidation or merger or sale or conveyance of property to which the covenant of this Section 11.01 is applicable, then, in any such event, the surviving corporation will promptly deliver to the Trustee: (1) an Officers' Certificate stating that as of the time immediately after the effective date of any such transaction the covenants contained in this Section 11.01 have been complied with; and (iv2) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each Counsel stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction covenants have been complied with. with and that any instrument or instruments executed in the performance of such covenants comply with the requirements thereof. (b) Notwithstanding the foregoingforegoing Section 11.01(a), (i) the Borrower Company may consolidate or merge or consolidate with or transfer into, or sell or convey all or substantially all of its assets to an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organizationproperty to, KAC; provided provided, -------- however, that the successor assumes surviving corporation (if other than the ------- Company) shall expressly assume by supplemental indenture complying with the requirements of Article Ten, satisfactory in form to the Trustee, the due and punctual payment of the principal of, premium, if any, Change of Control Purchase Price, Asset Sale 103 Purchase Price and interest on all of the Borrower’s obligations under this Agreement Notes, according to their tenor, and the other Loan Documents. Upon any merger due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed or consolidationobserved by the Company and (ii) the Company may consolidate or merge with or into, or any sale, assignment, transfer, conveyance sell or other disposition of convey all or substantially all of its property to, a Subsidiary Guarantor; provided, that the properties or assets surviving corporation (if other than the -------- Company) shall expressly assume by supplemental indenture complying with the requirements of Article Ten, satisfactory in form to the Trustee, the due and punctual payment of the Borrower and its Subsidiaries taken as a wholeprincipal of, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.3, the Successor Companypremium, if any, will succeed Change of Control Purchase Price, Asset Sale Purchase Price and interest on all of the Notes, according to and be substituted for the Borrowertheir tenor, and may exercise every right the due and power punctual performance and observance of all the Borrower under covenants and conditions of this Agreement and Indenture to be performed or observed by the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, in the case of such a sale, assignment, transfer, conveyance or other disposition of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and the other Loan Documents without further actionCompany.

CONSOLIDATION, MERGER AND SALE. The Borrower shall Indenture will provide that the Company may not (a) consolidate with or merge into any other Person person or convey, transfer or lease the its properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) person and may not permit any of its Subsidiaries person to enter merge into any such transaction or series of transactions if it would result in consolidate with the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: Company unless (i) either (A) in the case of a consolidation or merger, Company will be the Borrower is the surviving entity, or (B) the Person formed by resulting or surviving such consolidation entity or merger (if other than the Borrower) any successor or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, purchaser is an entity a corporation organized and existing under the laws of the United StatesStates of America, any state thereof State or the District of Columbia; , and any such successor or purchaser expressly assumes the Company's obligations under the Indenture, and (iiiii) immediately after giving effect to such transactionsthe transaction, no Default or Event of Default exists; and shall have occurred and be continuing. ANNEX-B ------- Summary of Certain Terms of the Guarantee General Pursuant to the Guarantee, the Company will irrevocably and unconditionally agree, to the extent set forth therein, to pay in full, to the holders of the TECONS, the Guarantee Payments (ivas defined herein) (without duplication of amounts theretofore paid by the Special Purpose Trust), to the extent not paid by the Special Purpose Trust, regardless of any defense, right of set-off or counterclaim that the Special Purpose Trust may have or assert. The following payments or distributions with respect to TECONS, to the extent not paid or made by the Special Purpose Trust (the "Guarantee Payments"), will be subject to the Guarantee (without duplication): (i) any accumulated and unpaid distributions on TECONS, and the redemption price, including all accumulated and unpaid distributions to the date of redemption, with respect to any TECONS called for redemption by the Special Purpose Trust but if and only to the extent that in each case the Company has made a payment to the Property Trustee (as defined) of interest or principal on the Junior Subordinated Debentures deposited in the Special Purpose Trust as trust assets and (ii) upon a voluntary or involuntary dissolution, winding-up or termination of the Special Purpose Trust (other than in connection with the distribution of such Junior Subordinated Debentures to the holders of TECONS or the redemption of all of the TECONS upon the maturity or redemption of such Junior Subordinated Debentures or upon conversion of all TECONS into Common Stock) the Borrower has delivered lesser of (a) the aggregate of the liquidation amount and all accumulated and unpaid distributions on the TECONS to the Administrative Agent an Officer’s Certificate date of payment, to the extent the Special Purpose Trust has funds available therefor, or (b) the amount of assets of the Special Purpose Trust remaining available for distribution to holders of the TECONS in liquidation of the Special Purpose Trust. The Company's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Company to the holders of TECONS or by causing the Special Purpose Trust to pay such amounts to such holders. The Guarantee is a guarantee from the time of issuance of the TECONS, but the Guarantee covers distributions and an Opinion other payments on the TECONS only if and to the extent that the Company has made a payment to the Property Trustee of Counselinterest or principal on the Junior Subordinated Debentures deposited in the Special Purpose Trust as trust assets. If the Company does not make interest or principal payments on the Junior Subordinated Debentures deposited in the Special Purpose Trust as trust assets, each stating that the Property Trustee will not make distributions on the TECONS and the Special Purpose Trust will not have funds available therefor. B-1 Certain Covenants of the Company In the Guarantee, the Company will covenant that, so long as any TECONS issued by the Special Purpose Trust remain outstanding, the Company will not (A) declare or pay any dividends on, or redeem, purchase, acquire or make a distribution or liquidation payment with respect to, any of its common stock or preferred stock or make any guarantee payment with respect thereto or (B) make any payment of interest, premium (if any) or principal on any debt securities issued by the Company which rank pari passu with or junior to the Junior Subordinated Debentures, if at such transaction complies time (i) the Company shall be in default with this covenant and that all conditions precedent provided for in this Agreement respect to its Guarantee Payments or other payment obligations under the Guarantee, (ii) there shall have occurred any Declaration Event of Default under the Declaration (the instrument relating to such transaction the TECONS) or (iii) the Company shall have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all given notice of its assets election to an Affiliate that has no significant assets defer payments of interest on the Junior Subordinated Debentures by extending the interest payment period as provided in the terms of the Junior Subordinated Debentures and such period, or liabilities and was formed solely for the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organizationany extension thereof, is continuing; provided that the successor assumes foregoing will not apply to stock dividends paid by the Company. The provisions of the immediately preceding sentence will not restrict the ability of the Guarantor to redeem rights issued pursuant to the Amended and Restated Rights Agreement, dated as of May 10, 1994 between the Guarantor and Wachovia Bank of North Carolina, N.A., as Rights Agent, as it may be amended from time to time, in an amount per right issued thereunder not to exceed that in effect on the date hereof. In addition, so long as any TECONS remain outstanding, the Company has agreed (i) to remain the sole direct or indirect owner of all of the Borrower’s obligations under this Agreement outstanding Common Securities (as defined) issued by the Special Purpose Trust and not to cause or permit the other Loan Documents. Upon Common Securities to be transferred except to the extent permitted by the Declaration; provided that any merger or consolidation, or any sale, assignment, transfer, conveyance or other disposition of all or substantially all permitted successor of the properties or assets Company under the Indenture may succeed to the Company's ownership of the Borrower Common Securities issued by the Special Purpose Trust, and its Subsidiaries taken (ii) not to take any action which would cause the Special Purpose Trust to cease to be treated as a wholegrantor trust for United States federal income tax purposes, except in each case, in accordance connection with the provisions a distribution of this Agreement described in the first paragraph of this Section 7.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, in the case of such a sale, assignment, transfer, conveyance or other disposition of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and the other Loan Documents without further actionJunior Subordinated Debentures.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not Without the consent of the Majority Shareholders, neither the Company nor any Subsidiary will do any of the following (or agree to do any of the following) pursuant to a transaction approved by the Board of Directors of the Company: (a) wind up, liquidate or dissolve its affairs; (b) sell, lease, transfer or otherwise dispose of all or substantially all of its assets to any other Person; (c) consolidate with or with, merge into or enter into a share exchange with any other Person; or (d) permit any other Person or convey, transfer or lease the properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower is the surviving entity, or (B) the Person formed by or surviving such consolidation or merger (if other than a wholly-owned Subsidiary on the Borrowerdate hereof) to merge into or the Person to which such sale, assignment, transfer, conveyancesell, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactions, no Default or Event of Default exists; and (iv) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant property, assets or liabilities and was formed solely for capital stock to the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organization; provided that the successor assumes all of the Borrower’s obligations under this Agreement and the other Loan Documents. Upon any merger or consolidation, Company or any saleSubsidiary, assignmentunless: (i) in the case of actions under clause (a) or (b) above, transfera wholly- owned Subsidiary is wound-up, conveyance dissolved and liquidated into another wholly- owned Subsidiary or other disposition into the Company or a wholly-owned Subsidiary sells, leases, transfers or otherwise disposes of all or substantially all of its assets to another wholly-owned Subsidiary or to the properties or assets of the Borrower and its Subsidiaries taken as a whole, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, ; or (ii) in the case of actions under clause (c) or (d) above, each of the following conditions is satisfied: (A) if such action involves the Company and if such surviving Person is a salecorporation other than the Company, assignmentall liabilities and obligations of the Company under the Stock Exchange Agreements shall remain in effect and shall have been expressly assumed by such surviving Person (pursuant to a document in form and substance reasonably satisfactory to the Majority Shareholders and their counsel) as if such surviving Person were the "Company" hereunder and thereunder; and (B) either (x) the Common Stock of such transferee Person into which the Series B Preferred Stock will thereafter be convertible (or American Depositary Receipts with respect thereto) is listed on a national securities exchange in the United States or traded on The Nasdaq Stock Market, transfer, conveyance or other disposition (y) all of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and Series B Preferred Stock is concurrently redeemed for cash in accordance with Section 5 of the other Loan Documents without further actionSeries B Certificate of Designations.

CONSOLIDATION, MERGER AND SALE. The Borrower shall not Without the consent of the Majority Shareholders, neither the Company nor any Subsidiary will do any of the following (or agree to do any of the following) pursuant to a transaction approved by the Board of Directors of the Company: (a) wind up, liquidate or dissolve its affairs; (b) sell, lease, transfer or otherwise dispose of all or substantially all of its assets to any other Person; (c) consolidate with or with, merge into or enter into a share exchange with any other Person; or (d) permit any other Person or convey, transfer or lease the properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety to any Person or (b) permit any of its Subsidiaries to enter into any such transaction or series of transactions if it would result in the disposition of the consolidated properties and assets of the Borrower and its Subsidiaries (considered as a single enterprise) substantially as an entirety, unless, in each case: (i) either (A) in the case of a consolidation or merger, the Borrower is the surviving entity, or (B) the Person formed by or surviving such consolidation or merger (if other than a wholly-owned Subsidiary on the Borrowerdate hereof) to merge into or the Person to which such sale, assignment, transfer, conveyancesell, lease or other disposition has been made (such Person, the “Successor Company”) expressly assumes, pursuant to an assumption agreement executed and delivered to the Administrative Agent and the Collateral Agent, the payment of the principal of (and premium, if any) and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed and all obligations under the other Loan Documents; (ii) the Successor Company, if any, is an entity organized and existing under the laws of the United States, any state thereof or the District of Columbia; (iii) immediately after giving effect to such transactions, no Default or Event of Default exists; and (iv) the Borrower has delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction complies with this covenant and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Notwithstanding the foregoing, the Borrower may merge or consolidate with or transfer all or substantially all of its assets to an Affiliate that has no significant property, assets or liabilities and was formed solely for capital stock to the purpose of changing the Borrower’s jurisdiction of organization or the Borrower’s form of organization; provided that the successor assumes all of the Borrower’s obligations under this Agreement and the other Loan Documents. Upon any merger or consolidation, Company or any saleSubsidiary, assignmentunless: (i) in the case of actions under clause (a) or (b) above, transfera wholly- owned Subsidiary is wound-up, conveyance dissolved and liquidated into another wholly-owned Subsidiary or other disposition into the Company or a wholly-owned Subsidiary sells, leases, transfers or otherwise disposes of all or substantially all of its assets to another wholly-owned Subsidiary or to the properties or assets of the Borrower and its Subsidiaries taken as a whole, in each case, in accordance with the provisions of this Agreement described in the first paragraph of this Section 7.3, the Successor Company, if any, will succeed to and be substituted for the Borrower, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents, with the same effect as if the Successor Company had been named as the Borrower in this Agreement, and, ; or (ii) in the case of actions under clause (c) or (d) above, each of the following conditions is satisfied: (A) if such action involves the Company and if such surviving Person is a salecorporation other than the Company, assignmentall liabilities and obligations of the Company under the Stock Purchase Agreements shall remain in effect and shall have been expressly assumed by such surviving Person (pursuant to a document in form and substance reasonably satisfactory to the Majority Shareholders and their counsel) as if such surviving Person were the "Company" hereunder and thereunder; and (B) either (x) the Common Stock of such transferee Person into which the Series B Preferred Stock will thereafter be convertible (or American Depositary Receipts with respect thereto) is listed on a national securities exchange in the United States or traded on The Nasdaq Stock Market, transfer, conveyance or other disposition (y) all of properties or assets, the Borrower shall be released and relieved from any obligations under this Agreement and Series B Preferred Stock is concurrently redeemed for cash in accordance with Section 5 of the other Loan Documents without further actionSeries B Certificate of Designations.